Wisconsin Business and Commercial Litigation

Sorry for the lack of recent posting — I was preparing for a trial that ended up being adjourned at the last minute.  As a result, I’ve got a lot of facts and law stuffed into my head that I won’t be able to use until later this summer.  Also, I’ve got a backlog of decisions that impact how business is conducted in Wisconsin.

In March, the court of appeals reversed Milwaukee County Judge Cooper’s grant of summary judgment to the employer challenge to the City of Milwaukee’s sick leave ordinance.  In MMAC v. City of Milwaukee, the District 1 court of appeals not only reversed the summary judgment that had been granted to MMAC, but remanded with directions to enter summary judgment for the City, upholding the ordinance. 

We disagree with the circuit court and conclude that the proponents of the ordinance, not MMAC, are entitled to summary judgment. Specifically, we hold:

I. The ballot did comply with the statutory requirement that it contain “a concise statement of [the ordinance's] nature” under WIS. STAT. § 9.20(6).

II. The ordinance as a whole and the specific challenged provisions do not violate substantive due process because there is a rational relationship to the City’s police powers.

III. The ordinance is not preempted by state statutes.

IV. The ordinance is not preempted by the National Labor Relations Act (NLRA) or the Labor Management Relations Act (LMRA).

V. The ordinance does not violate the state and federal constitutional prohibitions against impairment of contracts.

VI. The ordinance does not regulate activity outside the City limits.

VII. The two-year period under § 9.20(8), during which the ordinance may not be repealed or amended except by a vote of the electors, excludes the time between the circuit court’s issuance of the temporary injunction and the vacation of the permanent injunction by the circuit court pursuant to this opinion.

As you can see, there’s a lot of detail here, and I’m not going to go into all of it.  This won’t be the last stop for this ordinance, as I’m sure it will end up (if it isn’t already) before the Supreme Court.

As most of you know, if you’ve read my previous postings (see June 12, 2009), the City of Milwaukee passed, through so-called direct legislation, an ordinance requiring employers to provide paid sick leave for all workers.  The legislation was later found unconstitutional because, among other things, the phrasing of the issue on the ballot was overly vague. 

Proponents of the legislation appealed the ruling.  Last week, the City of Milwaukee announced that it was not joining in the appeal.  Naturally, the private groups supporting the legislation and the appeal (in all other instances known as special interest groups) argue that by not joining the appeal, the City is turning its back on all those who voted in favor of the legislation.

This argument ignores the finding of the court that the phrasing of the issue on the ballot left the voters without a real understanding of what they were voting on.   However illogical, the argument is typical of that used to support this and similar issues that require business owners (including stockholders) to subsidize services provided to the community at large.

This article in the Wisconsin Law Journal discusses the issues in greater detail.

On June 12, 2009, Milwaukee County Judge Thomas Cooper concluded that the City of Milwaukee’s sick leave ordinance was both improperly enacted and an unconstitutional exercise of the City’s police powers.  The Journal-Sentinel more completely summarizes the decision and order.  The legal deficiencies identified by the court are fairly easily remedied, so even if the decision holds up on appeal, the legislation is likely to re-appear in the next couple of years.  The decision itself is worth a look, a little formulaic, but exhaustive and well-researched.  I can’t find the decision itself online yet.  When I do, I’ll try to post a link.